It is always fascinating how different scholars can often look at the same set of data and come to exactly opposite conclusions. This is true in just about every field of human endeavor, and it is certainly true in Torah as well. Of course it leads one to speculate how much each scholar’s conclusion was influenced by his/her preconceived notions, ideas and biases, and how much came from a true analysis of the evidence. This is a question that typically can’t ever be fully answered, though often certain suspicions may seem more obvious than others.
This phenomenon is clearly evident in the halachic attitude towards abortion, perhaps more than in any other area of Halacha. You will see how the exact same source material that was used by all of our previously mentioned sources to prove that abortion is not considered murder halachically, was used by another large group of contemporary poskim to prove the opposite assertion. The dichotomy is quite astounding, and it really leads one to wonder what the influences were that led to these widely divergent conclusions.
Let us hearken back to our discussion of the two famous “conundrums”, the setirah (contradiction) in tosfos (see our blog post here), and the opinion of the Rambam (see blog post here). Essentially, it is the analysis of these two issues that is the primary dividing line between the two camps. Of course, there are many arguments thrown back and forth, and we will touch upon many of these during our discussion, but almost every posek who deals with this topic ultimately bases his conclusion on his understanding of one or both of these Rishonim.
Today I will describe how the opinions that hold that abortion is a violation of the Torah prohibition of retzichah (murder) use the Tosfos and the Rambam as a proof to their assertion.
First, let us analyze Tosfos. Let us recall the Tosfos in Sanhedrin 59a who states that due to the rule of Le’kah Midam, it must be that abortion is prohibited for a Jew, just as it is for a gentile. The poskim that we have brought until this point who held that abortion is either permitted, or an issur derabbanan, or even an issur medoraytah but not retzichah, have understood this rule in a several ways. One possibility is that Tosfos is only discussing this according to the opinion of Rabbi Yishmael who holds that abortion is prohibited for a non-Jew but not according to the Chachamim (this being the explanation of the Toras Chessed here, Achiezer here, Tzitz Eliezer here and see our previous discussions). Another possibility is that the rule of Lekah Midam is a rabbinic rule, which forces the rabbis to decree that it should be prohibited (this being the assumption of the Chofetz Chaim here, the Ben Ish Chai here, the Beit Yehuda here, and others see all our previous discussions). A third possibility was that as long as we can find another Torah prohibition that forbids a Jew from performing an abortion, then the rule would not be violated, even if it is not the prohibition of murder (this being the assumption of the Chavos Yair here and others, again, see our previous blog posts). It was also suggested that the conclusion of Tosfos is that this is an exception to the rule (see Rav Palagi in our previous post here).
All of the above suggestions allowed for a way to answer the famous setirah in Tosfos. Either Tosfos is consistent in his opinion that abortions are permitted. Or you can say that although they are permitted, they are not murder, and thus when Tosfos used the language “muttar” he meant that it was not murder.
However, the poskim who claim that abortion is murder, present the following argument (See RMF here for one example). The principle of Lekah Mid’am is that it does not make sense for the Torah to prohibit a gentile from doing something that it permits to a Jew. Therefore it follows that the severity of the prohibition must also be the same. Just as it makes no sense to claim that a Jew should be allowed to do something that is prohibited for a gentile, it also makes no sense to claim that something that is murder for a gentile should not be murder for a Jew. Therefore, they learn from the rule of Lekah mid’am which Tosfos applies to abortions that abortion must be retzichah for a Jew as well as for a gentile.
The obvious difficulty with this approach to tosfos is how to deal with the glaring contradiction to his previous language stating that abortion is “muttar” (permitted). One claim that has been made by these poskim is that he didn’t mean to say that it is muttar, only that one is not liable for capital punishment. This is because even those who hold that abortion is murder, agree that there can be no capital punishment, either because it is unknown that the fetus is healthy enough to live (hatra’at safek), or for some other reason. However, it is one thing to state that he meant that in terms of retzichah (murder) it is muttar, but still may be a lesser prohibition. But it is quite another to claim that Tosfos used the language “muttar” to describe something that the Torah considers murder! (It is worthwhile to see the comments of the Tzitz Eliezer here)
In fact, many of the previous poskim that we have been discussing who hold that abortion is not murder also explain that Tosfos doesn’t really mean “permitted” because it is still prohibited because of one of the many reasons which we have discussed (Rav Y Emden for example explains Tosfos language this way, see previous posts for the exact reference). However, if one holds that abortion is not murder at all, but it is prohibited for some other reason, I can understand that Tosfos may use language that might be a little "off". But if one holds that abortion is murder, the to claim that Tosfos could use the language muttar and still hold it is murder is a step that seems to be quite a leap.
One of the most famous poskim who held that it was Retzichah was R’ Moshe Feinstein. Because of this incredible difficulty with Tosfos, he goes so far as to claim that the language in Tosfos is a misprint, and he meant to write “pattur” (not liable for punishment) as opposed to muttar (see here). While this approach solves the conundrum, it is unbelievable to suggest that the language that was the subject of thousands of pages of discussion for hundreds of years should suddenly be so easily fixable by claiming that it was all just a typo! If not for the incredible stature, scholarship, and reputation of HaRav Feinstein ZT’l, which is deservedly unquestioned in Halachic circles, I don’t think anyone would have taken such a suggestion seriously. (It is worthwhile to see the famous comments of the Tzitz Eliezer regarding HaRav Moshe Feinstein’s claim here).
The second major issue is the subject of the opinion of the Rambam. It is worthwhile to review our previous discussion of the Rambam here, and how the poskim who hold that abortion is not retzichah deal with the Rambam’s opinion. I will not go over it at length now, but I strongly recommend that you review our discussion from the previous post. The question of course, is how does one interpret the fact that the Rambam introduces the concept of rodef (pursuer) in order to justify killing the fetus when a mother’s life is threatened by the process of labor and delivery. We already reviewed the other opinions, but the advocates of the abortion is murder position have a simpler answer. They claim simply that this is proof that the Rambam held that abortion is murder, and therefore the only possible reason why one would be allowed to commit murder would be to apply the principle of rodef.
The obvious problem with this approach is the next line in the Rambam. If he truly was applying the principle of Rodef as claimed by these poskim, then why does this principle no longer apply once the head is delivered, clearly the baby is still a rodef? What changed?
Probably the most famous explanation of the Rambam that would be consistent with those poskim who hold that abortion is murder would be the explanation of Rav Chaim Brisker ZTL (RCB) in his sefer Rav Chaim al HaRambam Hilchot Retzichah 1:9 (I apologize but I could not find it online to give a link to it). RCB establishes, in classic brisker fashion (this explanation of RCB is often given as a classic example of the “Brisker method” at its best), that are two types of rodefs. The first is a complete rodef (“rodef gamur”) and the second is an incomplete rodef (“rodef she’eyno gamur”). There are also two reasons why one should kill the rodef, one is to save the nirdaf (the one being pursued), and the other is because the rodef himself is liable to death for his act of pursuing. A rodef gamur has both reasons apply to him; this refers to the classic example of one person chasing another with a weapon. There is both an obligation to save the nirdaf, and a guilty rodef. Therefore one can kill the rodef, as one cannot say why should this person be more deserving of death than the other (eyn dochin nefesh mipnei nefesh), because the rodef is liable for death, therefore his life is more expendable.
However, in the case of an incomplete rodef, such as the fetus who is not intending to kill anyone, the only reason to kill the rodef is to save the nirdaf (the mother in this case). Therefore, prior to the delivery of the head, we can kill the rodef because we have in front of us two souls, one of the fetus which is an incomplete soul, and one of the mother which is complete, therefore her soul takes precedence. But once the head is delivered, we have two equal souls, and therefore we must apply the rule of eyn dochin nefesh mipnei nefesh, as the fetus is only an incomplete rodef.
The explanation of RCB would allow us to still consider the prohibition of murder for the fetus, but still allow killing the fetus to save the mother, and give us an explanation of the Rambam. The main problem is that RCB is only referring to a fetus which is “ne’ekar letzeit” (in labor) which most poskim already agreed is considered a separate being from the mother. This doesn’t at all prove what the Rambam would hold regarding abortion prior to the onset of labor, which is the question we are dealing with. There are other issues with RCB as well, but this is not the place for such a lengthy discussion (see Seridei Eish for one example).
RMF has another explanation for the Rambam as well, see here for the details,
When one analyzes the sources that hold that abortion is indeed an issur de'oraytah, one finds that these two proofs from tosfos and the Rambam play a central role in their argument. In the next few posts I will discuss several of the poskim who are generally quoted as supporting the view that abortion is indeed murder, and we will analyze each one to see if indeed this is their opinion.